A married couple in Coogee (Sydney) found their house was collapsing because of excavation taking place on the neighbouring property. A builder was excavating for a car park before building a block of units.
The couple sued the builder. In its defence, the builder listed the names of the structural engineers, the excavation contractor, the geotechnical engineers, the architect and the structural design certifier and alleged that they were concurrent wrongdoers.
In NSW it is not necessary for a defendant wishing to have its liability reduced because of the involvement of another person to join that other person to the litigation. However the defendant must give the plaintiff written notice that the defendant has information identifying the other person and also information about circumstances which would make that other person a concurrent wrongdoer.
The couple complained that the builder’s defence was insufficient because it simply named people and identified their roles in the project. It did not say how they may have been at fault. The couple asked a NSW Supreme Court judge to strike out that part of the defence.
The judge agreed. He decided the builder had failed to identify the acts of the other parties which had caused or contributed to the loss. The builder’s defence should have made detailed allegations against the other people named in it. Accordingly the builder could not rely on the NSW concurrent wrongdoer legislation: Ucak v Avante Developments.
Victorian law is different. In Victoria, a defendant seeking an apportionment of liability must join other relevant parties to the litigation. However the Trade Practices Act 1974(Cth), which of course applies in Victoria, and which is particularly relevant to product liability claims, has apportionment rules which are very similar to the NSW ones.
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